Boucher v. Riner

KARWACKI, Judge. Daniel M. Boucher, the appellant, wishing to learn how to parachute, joined the Naval Academy Parachuting Club (the Club) in September 1982. The Club is a voluntary extracurricular activity for students at the Naval Academy. The Academy, where Boucher was a midshipman, provided equipment, paid various fees, and made arrangements for the use of a drop zone for the club members.

Although the Club was organized and operated by upperclass midshipmen, it had a faculty advisor, and the Club members were accompanied on field trips by naval officers. The Club had an agreement with Parachutes Are Fun, Inc. (Parachutes), for the use of Parachutes’ drop zone as a training ground for Club members. That agreement provided that the Club would provide its own equipment and be able to use the drop zone at a reduced rate. Parachutes agreed to conform to all regulations as specified by the Academy.

Prior to Boucher’s first parachute jump, he received instructions in sport parachuting at the Academy from ⁵⁴¹ Midshipmen Byrne and Lastar, who were among the upperclassmen who ran the Club. The two were qualified by the U.S. Parachute Association (USPA), a civilian organization engaged in the promotion and self-regulation of the sport. Boucher’s training consisted of instruction in the hazards normally associated with parachuting, including the hazard posed by jumping in the vicinity of uninsulated electric power lines. Attention was given to the methods which should be employed by the parachutist to avoid or minimize contact with obstacles on the ground by controlling the direction of descent.

The appellees, in addition to Parachutes, are: the Pelican-land Corporation (Pelicanland), the owner of the airport where the drop area was located; Gordon E. Riner, the co-owner and vice-president of Parachutes, who is a certified jumpmaster, instructor, and parachutist; and Kenneth Dunker, a certified jumpmaster, instructor, and parachutist who worked at Parachutes. On September 18, 1982, Boucher along with other midshipmen went to Pelicanland to make his first jump. Prior to Boucher’s boarding the airplane that day, he signed an exculpatory agreement with Parachutes, the relevant portion of which stated: 2 A. EXEMPTION FROM LIABILITY The Participant exempts and releases the Corporation, its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees from any and all liability, claims, demands or actions or causes of action whatsoever arising out of any damage, loss or injury to the Participant or the Participant’s property while upon the premises or aircraft of the Corporation or while participating in any of the activities contemplated by this Agreement, whether such loss, damage, or injury results from the negligence of the Corporation, its officers, agents, servants, employees or lessors or from some other cause. ⁵⁴² At about 5:30 p.m., a decision was made that wind conditions were such that the jump could be made. Boucher went up in the plane with two other midshipmen and with Riner, who was there to act as coach and jumpmaster.

Dunker was on the ground, near the target area, and was manning the public address system to “talk down” the jumpers. Boucher was the last of the three to jump. After Boucher’s parachute opened, Dunker began calling out his instructions, telling Boucher to change from a “running” position where his back was to the wind, to a “holding” position, facing the wind. As Boucher neared the ground, Dunker instructed him to execute a 360° turn.

At this point, Dunker realized that there was a danger that Boucher would fly right into nearby power lines. He gave no indication of that danger to Boucher, who continued his descent with his back to the lines. Seconds later, Boucher collided with the lines, sending 12,500 volts of electricity through his body. Boucher filed a two count declaration against the appellees alleging (1) negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and (2) gross negligence on the part of the appellees in the performance of their duties.

The appellees jointly moved for summary judgments. On July 24, 1985, following a hearing, the Circuit Court for Caroline County (Rasin, J.), in a well reasoned memorandum opinion, granted the appellees’ motion. Boucher, in his appeal from those judgments, presents the broad question of “whether the trial court improperly granted summary judgment to the defendants?” Specifically, he raises the following issues: I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II

Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence? ⁵⁴³ III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor? Preliminarily, since the hearing court resolved this controversy in favor of the appellees by summary judgment, we will review the evidence, including all permissible inferences therefrom, in the light most favorable to the appellant. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62 , 485 A.2d 663 (1984); Washington Homes v. Inter.

Land Dev., 281 Md. 712, 716-18 , 382 A.2d 555 (1978). Summary judgment should be granted only upon a showing that there is no genuine issue as to any material fact. Fireman’s Fund Ins. Co. v. Rairigh, 59 Md.App. 305, 313 , 475 A.2d 509 , cert. denied, 301 Md. 176 , 482 A.2d 502 (1984).

If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Coffey v. Derby Steel Co., 291 Md. 241, 246-47 , 434 A.2d 564 (1981). Our review of all of the evidence in the light most favorable to the appellant convinces us that the hearing court was correct in finding, that there was no genuine dispute as to any material fact and that the appellees were entitled to judgments as a matter of law. I. Boucher contends that the appellees were guilty of gross negligence and that even if the exculpatory clause is held to be valid it does not shield the appellees from liability for gross negligence.

As to the latter part of Boucher’s assertion—that the appellees are not shielded from liability for gross negligence—he is correct. A waiver of a right to sue, such as the one executed between Boucher and Parachutes, is ineffective to shift the risk of a party’s own willful, wanton, reckless, or gross conduct. Winterstein v. Wilcom, 16 Md.App. 130, 134-36 , 293 A.2d 821 , cert. denied, 266 Md. 744 (1972). Dean Prosser explains such a result on the alternative bases of common experience as to what is intended by the contracting parties or of public ⁵⁴⁴ policy to discourage aggravated wrongs.

Prosser and Keeton, The Law of Torts § 68 (5th ed. 1984). Returning to the first part of Boucher’s contention—that the appellees were guilty of gross negligence—we find ourselves in agreement with the hearing court that Boucher fails in his reliance on essentially three facts to raise an inference of gross negligence. Boucher alleges that the appellee Dunker was on the ground giving instructions to Boucher as he was descending; that Boucher was unaware of the electric lines prior to colliding with them because, as Dunker had instructed, his back was to the lines; and that Dunker did not warn Boucher of the presence of the power lines. Boucher argues that an inference of gross negligence can be drawn from the above circumstances because Dunker was “controlling” Boucher’s movements and thus guided Boucher into the electric lines.

Gross negligence has been examined in a number of Maryland cases dealing with a variety of issues. These cases have addressed issues which include the circumstances under which gross negligence can support an award of exemplary damages, 1 civil liability for injuries to trespassers, 2 and criminal liability for manslaughter by automobile. 3 Our appellate courts have also dealt with the issue of gross negligence in the context of the type of conduct that would support an inference sufficient to overcome the bar of an ⁵⁴⁵ automobile guest statute, 4 contributory negligence, 5 and, as in this case, a pre-injury release. 6 In Smith v. Gray Concrete Pipe Co., 267 Md. 149 , 297 A.2d 721 (1972), the Court of Appeals addressed the issue of gross negligence in the context of punitive damages. In that case, a boy was killed after he was struck by a truck owned by the defendant concrete company and driven by an inexperienced 18 year-old. In an action seeking compensatory and exemplary damages, the executor of the decedent’s estate sued Gray Concrete for negligent entrustment of the vehicle and the driver for negligent operation of the truck.

The complaint stated that the corporate defendant had entrusted the truck to the driver knowing that the truck’s hood was improperly secured and that it could pop open at any time, that the driver was only 18 when the law required its drivers to be over 21 years of age, that the driver had no chauffeur’s license, and that the driver was untrained, unqualified, and incompetent to drive the truck on the highway. Id. at 169 , 297 A.2d 721 . The count against the driver alleged that he did not check the condition of the truck prior to operating it on the highway, that he did not respond properly when the hood flew up and blocked his vision—he stopped his truck in the center lane of the highway rather than pulling it off to the side—and that he knew or should have known that the truck was in violation of many requirements of the law. Id. at 170-71 , 297 A.2d 721 .

The Court concluded that punitive damages were recoverable in actions arising out of motor vehicle torts where there was a “ ‘wanton or reckless disregard for human life’ in the operation of a motor vehicle, with all the known dangers and risks attendant to such conduct.” Id. at 168 , 297 A.2d 721 . The Court stated that the standard contemplated conduct which was of an “extraordinary or out ⁵⁴⁶ rageous character,” but which stopped short of “wilful or intentional injury.” Id. In Smith , the Court held that punitive damages were not recoverable against the driver of the truck because his conduct, “although constituting sufficient negligence to support a claim for compensatory damages, does not mount up to ‘a wanton or reckless disregard for human life.’ ” Id. at 171 , 297 A.2d 721 . In other words, although the driver may have exercised extremely poor judgment in his operation of the truck, his conduct was not of an extraordinary or outrageous character so as to constitute gross negligence.

On the other hand, the corporate defendant was found to be subject to possible exemplary damages. The conduct of Gray Concrete “did not occur under the pressures of a highway crisis, where what might superficially appear to be caused by ‘extraordinary or outrageous conduct’ could be merely the result of poor judgment exercised under such circumstances.” Id. at 172 , 297 A.2d 721 . The Court noted that Gray’s conduct reflected a premeditated decision by an employer in possession of facts which should have indicated almost certain harm to others. Id.

In another instructive case, Liscombe v. Potomac Edison Co., 303 Md. 619 , 495 A.2d 838 (1985), the Court of Appeals had to determine whether there had been a showing of legally sufficient evidence of gross negligence to defeat the defendants’ motions for summary judgment. Liscombe involved the driver of a dump truck who was injured when the raised bed of his truck came into contact with high voltage lines that passed over the site. The driver alleged that the gross negligence of both the power company and the occupier of the premises led to his being injured. Id.

The Court quoted from Bannon v. B. & O. R.R. Co., 24 Md. 108, 124 (1866), where it was said: “Gross negligence is a technical term, it is the omission of that care ‘which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Id., 303 Md. at 634-35 , 495 A.2d 838 . The Court then noted its decision in Romanesk v. Rose, 248 Md. 420 , 237 A.2d 12 (1968) ⁵⁴⁷ (applying Virginia law), in which it quoted with approval the definition of gross negligence from 4 Blashfield,